In this action to recover for injury to property received in collision with appellant’s wagon, the following evidence was received upon the direct examination of the plaintiff: “ Q. Did you have any conversation with the driver of the Borden’s milk wagon ?” and answered, “Yes, sir. * * * Q. When did you have this talk with Borden’s man ? A. Right after he killed the horse. Q. How long after the shaft struck the horse, was it ? A. Right away. Q. Can you say about how many minutes ? A. In about three or four. Q. Three or four minutes ? A. Yes. Q. As soon as you got off the wagon he *454got off ? A. Yes, sir. * * * Q. What did he say to you ? A. He said that it was his fault. * * * Q. Is that all he said ? A. That is all he said. That is all I spoke to him about.” Later the witness was cross-examined as to his actions after the accident, whereby it appears that his horse had fallen; that he devoted himself to helping the horse to his feet; that his sole attention was taken with that; that he sent a stableman to telephone for a doctor. He testified: “Q. And the first man you talked to was this stableman you sent to telephone ? A. Yes, sir.” It thus appears that if, as plaintiff testified, he had a conversation with the driver, it must have been at some interval after the accident. The words said to have been used by the driver were not exclamatory, but in confession; not accompanying the act, but spoken in a subsequent conversation; not an outcry qualifying the thing done, but in explanation and in accountability. The testimony is condemned by Sherman v. D., L. & W. R. R. Co. (106 N. Y. 542), and the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Jenks, P. J., Thomas and Stapleton, JJ., concurred; Putnam, J., read for affirmance, with whom Carr, J., concurred.